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HomeMy WebLinkAboutCP-21-SA-0000009-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : DOUGLAS DUNBAR : CP-21-SA-0009-2010 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., September 8, 2010:-- The defendant has appealed to the Superior Court from our order entered on July 6, 2010 in which he was found guilty of the summary offense of maximum 1 speed limits, specifically traveling 36 miles per hour in a 25 mile per hour zone. In his concise statement of matters complained of, the defendant alleges that there was insufficient evidence as to appellant’s speed and that the verdict was against the weight of the evidence. We will address these allegations of error in the opinion that follows. SUFFICIENCY OF EVIDENCE AS TO APPELLANT’S SPEED Officer Timothy Groller of the Carlisle Police Department testified that on October 26, 2009, at approximately 2:00 p.m. he was in a marked patrol car doing a speed traffic detail in the 600 block of Belvedere Street in the Borough of 1 75 Pa.C.S. § 3362(a)(3). CP-21-SA-0009-2010 23 Carlisle. Officer Groller was using the Enradd speed timing device which has been certified as an official speed timing device by the Commonwealth of 4 Pennsylvania. Officer Groller stated that he was not formally certified to use the device and explained on cross-examination that “we are not required to have a 5 specific personal certification.” Officer Groller set the Enradd device to alert him when any vehicle traveled at a speed of 36 miles per hour or greater, with the alert being an 6 audible beep. On the day in question, when the defendant’s Tacoma pickup passed through the zone, the Enradd device beeped and displayed a speed of 7 40 miles an hour. After Officer Groller heard the device beep and saw 40 miles per hour displayed, he promptly pulled the defendant’s vehicle over and issued him a citation for traveling 40 miles per hour. In his concise statement, the defendant appears to be contending that something more than an alert, in this case a beep, from a certified speed timing 2 Transcript of proceedings, June 8, 2010, pp. 3 and 4. 3 The transcript mistakenly refers to “NRAD” as opposed to the correct designation of the device which is Enradd. 4 Transcript of proceedings, pp. 4 and 5. 5 Transcript of proceedings, pp. 5, 7 and 8. 6 Transcript of proceedings, pp. 8. 7 Transcript of proceedings, pp. 6 and 8. -2- CP-21-SA-0009-2010 device is required. The court is not aware of any authority which requires any speed timing device to emit a specific alarm, provide an indelible printout, set off flashing signals or, dare we say, speak. Perhaps, in this age of the talking GPS, we would prefer to have someone with a soothing English accent state “the Tacoma lorry has gone over the mark on the motorway.” Alas, that is not a requirement under the law. Presumably, the Commonwealth, in certifying the Enradd system, was satisfied with a beep. We are too. In short, the court was satisfied that the officers properly set up and tested the device and that the defendant improperly exceeded the speed limit. Admittedly, the court granted the defendant a slight benefit of the doubt in finding that he had traveled at 36 miles per hour (the “beep” point on the Enradd device as set by the officer) as opposed to the 40 miles per hour, which the device actually displayed. However, this gesture was in no way the result of a perceived or real shortcoming in the sufficiency of the Commonwealth’s case. WEIGHT OF THE EVIDENCE The first issue raised by the defendant regarding the weight of the evidence is that Officer Groller was not aware that the speed timing device was set up in accordance with the Manufacturer’s Manual. On cross-examination, Officer Groller was presented with a copy of the training manual that “suggests 8 that the device be set up four to five inches off the roadway” (emphasis added). 8 Transcript of proceedings, pp. 11. -3- CP-21-SA-0009-2010 As previously noted, the officer testified that he had placed the device on the curb; however, when questioned on cross-examination he could not state the precise height of the device off the ground. This seemingly significant faux pas is far from fatal. When defense counsel read from the manual, the height of four to five inches was clearly suggested and not required. Although the height of curbs vary from one street to the next, the court was not troubled by the placement of the device. The height of the device was certainly within a reasonable deviation of the suggested height. Moreover, when tested with another patrol vehicle, the 9 device indicated that it was properly operating and was able to “read the tires.” Regarding the “reading” of the tires, defendant suggests that Officer 10 Groller’s statement “I believe it reads the tires” indicates that he was unsure. The court recalls that testimony and the follow-up questions, and did not perceive any doubt on his part aside from his use of the term “believe.” Following suit, the court believes Officer Groller’s testimony that the system not only reads the tires, but that Officer Groller knew that it did. Similarly, the defendant claims that the officer did not know the gradation of the roadway. Again, defense counsel is seeking a mathematical certainty that is not required. Although the defendant may not be satisfied with the officer’s 9 Transcript of proceedings, pp. 11 and 12. 10 Transcript of proceedings, pp. 11. -4- CP-21-SA-0009-2010 11 statement “I think it is pretty flat,” the court is. Officer Groller may only have three years experience in the Carlisle Borough Police Department, but the court is satisfied that even if he only had three days experience he would be able to state whether or not the road was flat or at a grade. To be sure, defendant has not asserted that the roadway was anything other than flat. Defendant testified that there was a hill near the red light where he was stopped, but there was no testimony that the Enradd device was placed on anything other than a flat 12 surface. Finally, defendant claims that Officer Groller was not certified to operate the Enradd speed timing device. Here, the Pennsylvania Code contains no such requirement. Instead, the regulations that permit the usage of the Enradd device focus exclusively on technical requirements relating to its calibration and testing. 67 Pa. Code §105.56(e). The Code makes no reference whatsoever to operator qualifications. Accordingly, the court declines to supply them. This court has no power to insert an officer certification requirement where one does not already exist. See Vlasic Farms, Inc. v. Pa. Labor Rels. Bd., 734 A.2d 487, 490 (Pa. Cmwlth. 1999) (“[I]t is a canon of statutory construction that a court has no power to insert a word into a statute if the legislature has failed to supply it.”), aff’d, 565 Pa. 555, 777 A.2d 80 (2001). 11 Transcript of proceedings, pp. 12. 12 Transcript of proceedings, pp. 17. -5- CP-21-SA-0009-2010 For the foregoing reasons, we believe the evidence was weighty and sufficient and respectfully suggest that our order of July 6, 2010 be affirmed. By the Court, (Date) Albert H. Masland, J. Scott Michael Jocken, Certified Legal Intern For the Commonwealth Michael O. Palermo, Jr., Esquire For Defendant :saa -6-